By Michael Thiel
Lack of trust is very often at the root of any association’s legal work. Legal counsel reviews vendor contracts because people don’t think they can trust those vendors to deliver on all of their promises.
Counsel participates in professional standards proceedings because the parties need an attorney present so they can trust that the hearing will be fair. It would seem, at first glance, that the law is all about lack of trust.
However, there is one legal relationship that requires the highest level of mutual trust and confidence: The relationship between the association (in particular, the association executive) and the association’s attorney. The association executive needs to have absolute confidence not only in the counselor’s knowledge and skills, but also in the fact that counsel will always be acting in the best interests of the association. At the same time, counsel needs to be confident that the association executive, when seeking advice from counsel, will be absolutely forthcoming with all of the facts and circumstances, holding nothing back simply because it might be “misunderstood” or have a negative appearance.
A client’s failure to be fully forthcoming with counsel can be absolutely fatal to that relationship. Not only will the loss of trust complicate legal matters, but it will no doubt also have a big effect on the cost of those matters to the association.
First, whenever you consult with your attorney regarding a matter, provide him or her with all of the information about the situation. For your attorney to effectively represent the association, he or she needs to understand all of the facts and circumstances to evaluate options and possibilities and pursue only those that will yield the best results. Remember, your attorney is on your side and, as a general matter, cannot use any of the information you provide against your interests. So, complete honesty is always your best course of action.
The need to be completely forthcoming applies not just at the beginning of a situation, but throughout its duration. You need to constantly update your counsel on new developments or changes in what you had previously communicated.
Second, question your counsel about anything you don’t understand or don’t think is right. Don’t accept the explanations of an attorney who speaks to you only in legal terms that may be confusing. Insist that issues be explained in plain language until you fully understand them. Your questions may not only clarify a matter for you, but could also point to additional avenues of inquiry for your counsel to pursue regarding your situation.
Third, make sure you have a clear understanding about the fees and costs associated with the dispute. Discussing this upfront with your counsel is important because nothing can poison a relationship faster than discrepancies between expectations and reality when it comes to the cost of pursuing a legal matter. Additionally, uncertainty about costs can lead you to be too cautious about calling upon an attorney until after it is too late for anyone to effectively control or minimize a situation.
Finally, so much of today’s legal environment is just a matter of having established the proper processes and documentation. Ask your counsel to help establish your business processes in areas where problems are more likely to arise, such as employment matters. Working together proactively is a good way to not only avoid problems, but to let trust grow between you and your counsel.
Trust is a delicate flower and can easily be destroyed. Once lost, trust can almost never be completely rebuilt. With that in mind, it should never be abused. Once you establish a trusting relationship with your counsel, it can be an extremely valuable tool in helping you manage your organization.
Having a trusting relationship with your association counsel starts with hiring the right attorney. Check out
“How to Hire a Lawyer: Have the Right Association Legal Counsel at the Ready,” by NAR counsel Katherine Raynolds, in the RAE archives at nar.realtor/eomag.nsf/pages/legalwi08.